The
petitioner, Danny Brown, known also as Daniel Brown,
[1]
appeals following the denial of his petition for
certification to appeal from the judgment of the habeas court
denying his petition for a writ of habeas corpus. The
petitioner claims that the court abused its discretion by
denying his petition for certification to appeal, and by
rejecting his claims that (1) the state violated his rights
to due process and a fair trial by failing to disclose
material exculpable evidence and failing to correct false
testimony from certain witnesses at his criminal trial, and
(2) his criminal trial counsel rendered ineffective
assistance. We conclude that the habeas court did not abuse
its discretion in denying the petition for certification to
appeal and, therefore, dismiss the appeal.

This
case involves a homicide in New London. As the Supreme Court
recounted in the petitioner's direct appeal,
‘‘James ‘Tiny' Smith and Darrell
Wattley fought at a party on July 4, 1995. Wattley sliced
Smith's throat with a box cutter, wounding him
superficially. On the afternoon of July 13, 1995, [the
petitioner] and [Jamie] Gomez picked Smith up at the house of
Smith's mother, and drove him to [Anthony] Booth's
apartment at 93 State Pier Road in New London. When the three
men arrived at Booth's apartment, Booth told them that he
had asked Angeline Valentin, who lived in the same building,
to call Wattley over to the building so that Wattley and
Smith could fight. Booth, [the petitioner], Gomez and Smith
watched television while they waited for Wattley to arrive.
During their wait, and while [the petitioner] was rummaging
through a grey knapsack, Booth asked [the petitioner] whether
he ‘[had worn] gloves when he loaded it.' Booth
also had a knife in his hand. When Smith asked Booth why he
needed the knife, Booth replied: ‘[D]on't worry
about it, we are just going to fight him.'

‘‘When
Valentin called to say that Wattley was on his way, the four
men left the building and went outside. Gomez and [the
petitioner] went to the north side of the building while
Smith and Booth went to the south side and hid behind a bush.
While they were waiting, Booth was talking on a cellular
telephone to either [the petitioner] or Gomez. After
approximately fifteen minutes, a car arrived and Wattley got
out. Wattley walked toward the north end of the building,
where [the petitioner] and Gomez were waiting. Smith and
Booth then entered the building on the south side and began
to ascend the stairs. When Smith and Booth reached the third
floor, where Valentin's apartment was located, they heard
gunshots below. Smith and Booth then ran to exit the
building. As they descended the stairs, they saw Wattley
lying face down in the second floor hallway with blood
everywhere. Booth then stabbed Wattley a couple of times
before Smith and Booth fled the building.

‘‘The
four men ran to a red Mitsubishi, which was parked on State
Pier Road, east of the building. This car was owned by
Gomez' girlfriend, Dawn Waterson. Gomez sat in the
driver's seat, and [the petitioner], Smith and Booth sat
in the passenger seats. As they drove away, [the petitioner]
said ‘I robbed that nigger too.' [The petitioner]
had a knife in his lap, which he threw out of the window
while they were driving. Gomez drove Waterson's car
across town and parked it behind a mall. The four men walked
through a cemetery before splitting up. In the cemetery,
Booth told them that, if questioned, he and [the petitioner]
would say that they had been together. In addition, Booth
told Smith and Gomez to come up with an alibi. The four men
then separated.

‘‘A
few hours after the murder, Booth approached Valentin in the
parking lot of 93 State Pier Road. Booth told her that they
shot ‘him.' Booth also told Valentin that he knew
that she would not have lured Wattley to the building if she
had known that they intended to murder him.''
(Footnote omitted.) State v. Booth, 250 Conn. 611,
614-15, 737 A.2d 404 (1999), cert. denied sub nom. Brown
v. Connecticut, 529 U.S. 1060, 120 S.Ct. 1568, 146
L.Ed.2d 471 (2000).

The
petitioner subsequently was arrested and a consolidated trial
with Booth and Gomez followed, at the conclusion of which the
jury found all three defendants guilty of murder in violation
of General Statutes § 53a-54a, and conspiracy to commit
murder in violation of General Statutes §§ 53a-54a
and 53a-48 (a).[2]Id., 613. The petitioner directly
appealed from that judgment of conviction, which our Supreme
Court affirmed in a consolidated appeal with Booth and Gomez.
Id., 663.

The
petitioner commenced this habeas action in 2013. On March 15,
2016, he filed a second amended petition for a writ of habeas
corpus that contained two counts. The first alleged
ineffective assistance on the part of his criminal trial
counsel, Attorney Jeremiah Donovan, in failing to adequately
cross-examine and impeach the testimony of Smith and
Valentin.[3] In the second count, the petitioner
alleged a due process violation stemming from the state's
handling of allegedly exculpatory evidence regarding the
testimony of Smith and Valentin. More specifically, the
petitioner alleged that the state ‘‘failed to
disclose material favorable evidence to the petitioner with
respect to an express or implied agreement'' with
both Smith and Valentin ‘‘for favorable treatment
in [their] then pending criminal case[s] and failed to
correct [their] false or misleading testimony concerning the
same . . . .''

A
habeas trial was held on March 5, 2016, at which Donovan was
the sole witness.[4] In its subsequent memorandum of decision,
the habeas court rejected the petitioner's claims. With
respect to his ineffective assistance of counsel claim, the
court concluded that the petitioner failed to satisfy the
prejudice prong of Strickland v. Washington, 466
U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to
his claims regarding the suppression of allegedly exculpatory
evidence, the court found that the petitioner failed to prove
the existence of an agreement between the state and Smith and
Valentin that the state had suppressed. In so doing, the
court acknowledged that Donovan, in his habeas testimony,
confirmed that the state had assured Smith and Valentin that
their ‘‘cooperation [at the petitioner's
criminal trial] would be taken into consideration upon
sentencing.'' The court nonetheless found that the
petitioner had not met his burden in demonstrating that the
state suppressed evidence of that assurance. The court
further found that ‘‘even if the [state] had
suppressed evidence, the petitioner also failed to prove that
this evidence would have been material.'' The court,
therefore, denied the petition for a writ of habeas corpus.
The petitioner then filed a petition for certification to
appeal to this court, which the habeas court denied, and this
appeal followed.

On
appeal, the petitioner claims that the court abused its
discretion in denying the petition for certification to
appeal. Our standard of review for such claims is well
established. ‘‘Faced with a habeas court's
denial of a petition for certification to appeal, a
petitioner can obtain appellate review of the dismissal of
his petition for habeas corpus only by satisfying the
two-pronged test enunciated by our Supreme Court in Simms
v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and
adopted in Simms v. Warden, 230 Conn. 608, 612, 646
A.2d 126 (1994). First, [the petitioner] must demonstrate
that the denial of his petition for certification constituted
an abuse of discretion. . . . Second, if the petitioner can
show an abuse of discretion, he must then prove that the
decision of the habeas court should be reversed on the
merits. . . . A petitioner may establish an abuse of
discretion by demonstrating that the issues are debatable
among jurists of reason . . . [the] court could resolve the
issues [in a different manner] . . . or . . . the questions
are adequate to deserve encouragement to proceed further. . .
. In determining whether the habeas court abused its
discretion in denying the petitioner's request for
certification, we necessarily must consider the merits of the
petitioner's underlying claims to determine whether the
habeas court reasonably determined that the petitioner's
appeal was frivolous.'' (Citation omitted; internal
quotation marks omitted.) Ramos v. Commissioner of
Correction, 172 Conn.App. 282, 294, 159 A.3d 1174, cert.
denied, 327 Conn. 904, 170 A.3d 1 (2017). With that standard
in mind, we turn to the substantive claims raised by the
petitioner.

I

The
petitioner first contends that the court abused its
discretion in denying his petition for certification to
appeal because the state violated his right to due process
and a fair trial by failing to disclose material exculpatory
evidence in contravention of Brady v. Maryland, 373
U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The
petitioner claims that the state suppressed evidence of an
agreement between the state and Smith and Valentin in
exchange for their testimony at the petitioner's criminal
trial.

‘‘The
law governing the state's obligation to disclose
exculpatory evidence to defendants in criminal cases is well
established. The defendant has a right to the disclosure of
exculpatory evidence under the due process clauses of both
the United States constitution and the Connecticut
constitution. . . . In order to prove a Brady
violation, the defendant must show: (1) that the prosecution
suppressed evidence after a request by the defense; (2) that
the evidence was favorable to the defense; and (3) that the
evidence was material. . . .

‘‘It
is well established that [i]mpeachment evidence as well as
exculpatory evidence [fall] within Brady's
definition of evidence favorable to an accused. . . . [An
express or implied] plea agreement between the state and a
key witness is impeachment evidence falling within the
definition of exculpatory evidence contained in
Brady . . . .

‘‘The
[United States] Supreme Court established a framework for the
application of Brady to witness plea agreements in
Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3
L.Ed.2d 1217 (1959), and Giglio v. United States,
405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). . . .
Drawing from these cases, [the Connecticut Supreme Court] has
stated: [D]ue process is . . . offended if the state,
although not soliciting false evidence, allows it to go
uncorrected when it appears. . . . If a government witness
falsely denies having struck a bargain with the state, or
substantially mischaracterizes the nature of the inducement,
the state is obliged to correct the misconception. . . .
Regardless of the lack of intent to lie on the part of the
witness, Giglio and Napue require that the
prosecutor apprise the court when he knows that his witness
is giving testimony that is substantially misleading. . . . A
new trial is required if the false testimony could . . . in
any reasonable likelihood have affected the judgment of the
jury.'' (Citations omitted; internal quotation marks
omitted.) State v. Ouellette, 295 Conn. 173, 185-86,
989 A.2d 1048 (2010).

As our
Supreme Court has explained, ‘‘[t]he prerequisite
of any claim under the Brady, Napue and
Giglio line of cases is the existence of an
undisclosed agreement or understanding between the
cooperating witness and the state.'' Id.,
186. In its memorandum of decision, the habeas court found
that no specific agreement existed between the state and
either Smith or Valentin, apart from the state's
assurance that it would bring their cooperation to the
attention of the court in their respective criminal
proceedings.

The
petitioner now challenges the propriety of that
determination. His claim is governed by the clearly erroneous
standard of review. ‘‘The existence of an
undisclosed plea agreement is an issue of fact for the
determination of the trial court. . . . [W]here the factual
basis of the court's decision is challenged we must
determine whether the facts set out in the memorandum of
decision are supported by the evidence or whether, in light
of the evidence and the pleadings in the whole record, those
facts are clearly erroneous.'' (Citations omitted;
internal quotation marks omitted.) State v. Floyd,
253 Conn. 700, 737, 756 A.2d 799 (2000). ‘‘[A]
finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when although
there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed.'' (Internal
quotation marks omitted.) Orcutt v. Commissioner of
Correction, 284 Conn. 724, 742, 937 A.2d 656 (2007). In
reviewing the factual findings of a habeas court,
‘‘[t]his court does not retry the case or
evaluate the credibility of the witnesses. . . . Rather, we
must defer to the [court's] assessment of the credibility
of the witnesses based on its firsthand observation of their
conduct, demeanor and attitude. . . . The habeas judge, as
the trier of facts, is the sole arbiter of the credibility of
witnesses and the weight to be given to their
testimony.'' (Internal quotation marks omitted.)
Elsey v. Commissioner of Correction, 126 Conn.App.
144, 153, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d
1007 (2011).

In this
habeas proceeding, the petitioner bore the burden
‘‘to prove the existence of undisclosed
exculpatory evidence.'' State v. Floyd,
supra, 253 Conn. 737. We agree with the habeas court that the
petitioner did not satisfy that burden.

A

In its
memorandum of decision, the court found that the state had
assured both Smith and Valentin that it would bring their
cooperation in the petitioner's criminal trial to the
attention of the court in their respective criminal
proceedings. The court further found that the state disclosed
that agreement to the petitioner prior to his criminal trial.

The
evidence in the record substantiates those findings. Donovan
testified at the habeas trial that, in multiple conversations
with the prosecutor, he was apprised that the state made
‘‘no promises to[Smith and Valentin] other than
to bring their cooperation to the attention of the sentencing
judge'' in their respective proceedings. On the basis
of his extensive experience dealing with the New London
County Office of the State's Attorney, Donovan explained
that the state's agreement to bring Smith's and
Valentin's cooperation to the court's attention, but
not make any specific promises or representations, was
consistent with its general practice at that time. Donovan
further confirmed that he was aware of that agreement prior
to the petitioner's criminal trial. The court, as the
sole arbiter of credibility, was free to credit that
testimony. See Sanchez v. Commissioner of
Correction, 314 Conn. 585, 604, 103 A.3d 954 (2014)
(‘‘we must defer to the [trier of fact's]
assessment of the credibility of the witnesses based on its
firsthand observation of their conduct, demeanor and
attitude'' [internal quotation marks omitted]);
Taylor v. Commissioner of Correction, 284 Conn. 433,
448, 936 A.2d 611 (2007) (‘‘[t]he habeas judge,
as the trier of facts, is the sole arbiter of the credibility
of witnesses and the weight to be given to their
testimony'' [internal quotation marks omitted]).
Moreover, at the conclusion of the habeas trial, the
petitioner's counsel conceded that ‘‘[w]ith
respect to the evidence that was introduced, [Donovan] was
made aware that [Smith and Valentin's] cooperation would
be brought to the sentencing judge's attention.''

On the
basis of that evidence, the court properly could find that
the state disclosed to the petitioner its agreement with
Smith and Valentin to bring their cooperation to the
attention of the court in their respective criminal
proceedings. That finding, therefore, is not clearly
erroneous.

B

The
petitioner nevertheless claims that, beyond the agreement
addressed in part I A of this opinion, a specific agreement
existed between the state and both Smith and Valentin
regarding the lowering of their respective bonds, which was
not disclosed to the petitioner.[5] Under Connecticut law, the
petitioner bore the burden of proving the existence of that
agreement. Walker v. Commissioner of Correction, 103
Conn.App. 485, 493, 930 A.2d 65, cert. denied, 284 Conn. 940,
937 A.2d 698 (2007).

The
following additional facts, as reflected in the record and as
recited in this court's recent decision on the habeas
action involving one of the petitioner's coconspirators,
[6] are
relevant to this claim. ‘‘On September 13, 1995,
Valentin testified during a probable cause hearing for Booth
that implicated Booth in Wattley's murder. During
Valentin's bond hearing on October 5, 1995, Bernard
Steadman, her attorney, represented: ‘I have discussed
this matter with the state and they would-my understanding is
that there would be no objection to her moving out of state,
should she be released on a bond, and provided that she
maintain contact with-to or with their office either through
me or directly.' Steadman asked the court to consider
releasing Valentin on a promise to appear and allowing her to
travel to New Jersey, given her cooperation with the state,
and because Wattley's murder appeared to be gang
related.[7] Paul E. Murray, the supervisory assistant
state's attorney (prosecutor), [8] informed the court: ‘I
did indicate to [Steadman], Your Honor, that I would bring to
the court's attention [Valentin's] cooperation, and I
think I've done that.' The prosecutor also informed
the court that he had spoken with Valentin's mother about
Valentin going to New Jersey and that ‘both [Valentin]
and her mother have agreed . . . to keep the state apprised
as to her location and how she can be reached . . . .' In
the event that she did not keep the state apprised of her
location, the prosecutor stated that ‘[the state] will
find her and she will have forfeited whatever benefits she
has gained from her cooperation to this point.' He also
stated: ‘I'm not sure whether a promise to appear
is the appropriate thing, but I think certainly a substantial
reduction in her bond is appropriate.' Thereafter, the
prosecutor stated that he would not object to a written
promise to appear and informed the court: ‘I think if I
were in your position, I would not be averse to a written
promise to appear. I'm trying to be careful as to-as to
the record I'm making.'

‘‘After
considering, inter alia, the ‘cooperative aspects of
this matter, ' the court, Purtill, J., reduced
Valentin's bond from $100, 000 to a written promise to
appear and permitted her to reside in New Jersey. Immediately
following that decision, the following colloquy took place in
open court:

‘‘
‘[The Prosecutor]: . . . For the record, I would
indicate I do not disagree at all with the court's
decision. I was trying to be careful with the record because
of obvious cross-examination effect. In consideration, I want
the record to be clear that the only representations made
to [Valentin] were that any cooperation
would be brought to the attention of the sentencing court.
There was no quid pro quo for a specific bond
recommendation.

‘‘
‘[Steadman]: That is true, Your Honor.' . . .

‘‘On
March 14, 1996, during a consolidated probable cause hearing
for [the petitioner and Gomez], Smith provided testimony that
implicated [them] in Wattley's murder. [Gomez and his
trial counsel] attended this hearing, and so did Donovan,
[the petitioner's] lawyer. At the beginning of
Smith's testimony, the following examination took place
in open court:

‘‘
‘[The Prosecutor]: And you are in fact charged with
murder, felony murder, and conspiracy to commit murder with
respect to the case ...

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